Alcohol and Drug Policies to Protect Your Business
In a report recently published by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services, 8.7 percent of full-time workers in the 18- to 64-year-old age group used alcohol heavily in the previous month, and 8.6 percent used illicit drugs. Not surprisingly, 9.5 percent of workers were dependent on or abused alcohol or illicit drugs in the previous year. Substance abuse in the workplace costs U.S. companies billions of dollars a year in lost productivity, workplace accidents and injuries, employee absenteeism and increased illness.
Dramatically worse are the statistics for lawyers who have substance abuse problems. According to Intervention Strategies 18 percent to 20 percent of lawyers have substance abuse problems, compared to the general population at 8 percent to 10 percent. Some 25 percent of lawyers facing disciplinary actions with the bar association or private legal malpractice actions are found to be abusing alcohol or drugs, and suffering from a mental disorder.
Because the holidays are around the corner, there will be parties, family gatherings and year-end projects that must be finished, all stressors particularly to individuals who have substance abuse medical issues. We write this blog as a reminder to employers to review the laws concerning substance abuse in the workplace, and in the case of our law firm clients, avoid a potential professional liability action. Governing this topic is an interplay of both federal and California law. To review your rights as employer, and to increase your chances of avoiding a disability discrimination lawsuit, look to the federal and state statutes and regulations found in the Americans with Disabilities Act, the Federal Family Medical Leave Act, EEOC regulations, the California Fair Employment and Housing Act, and the California Family Leave Act.
Employer’s Rights to a Drug Free Workplace
Employers have the right to forbid alcohol or drugs in their workplace premises and to state that employees could be terminated for a violation of the policies. In fact, under the California Drug-Free Workplace Act of 1990, if you contract with or receive grants from the state of California you are required to certify that you provide a drug-free workplace. Additionally, if your company enters into a federal contract for the procurement of property or services (this is pertinent to accounting and law firms) valued at $100,000 or more you must follow the regulations of the Drug-Free Workplace Act of 1988.
Not all employees who suffer from alcohol and drug abuse can be terminated immediately. Under the Americans with Disabilities Act and the California Fair Employment and Housing Act, protected employees are those who are former abusers of alcohol or drugs who have been successfully rehabilitated through a supervised program or through their own program and who no longer use illegal drugs. These employees have been deemed by the legislation to have a disability. However, an employer may prohibit illegal drug-taking and alcohol abuse by employees in this class and take action against them, up to and including termination.
It is imperative that a detailed drug-free policy be written in your employee handbook. It is equally crucial that this policy be strictly enforced from boardroom to every level of employee to avoid a discrimination claim. Every violation must be carefully documented.
As an employer, you can legally suggest that the employee seek medical help from an Employee Assistance Program (EAP) in lieu of or in addition to a disciplinary action. You are not required to establish such a program or provide employees with the chance of rehabilitation in lieu of workplace discipline.
Leaves of Absence
If your employees who meet the protections of the ADA or FEHA state that they are having a substance abuse problem affecting their job performance and request a leave of absence under the Family Leave Act (29 CFR sec. 825.119 (a)) it is required to be given only if your company does not fall under the hardship rule. Under California labor code sec. 1025 only companies that have a minimum of 25 employees are covered. Such companies are required to reasonably accommodate any employee who wishes to enter into and participate in an alcohol or drug rehabilitation program. However, absent from the code section is a definition of “undue hardship” or how many times an employer is required to let an employee enter a rehabilitation program before a termination ensues.
The California Government code sec. 12945.2 (a) (3) (c) defines leave as being required when “an employee’s serious health condition makes an employee unable to perform the functions of the job position he/she was hired for.” Other statutes say that an employee is entitled to paid leave for accrued sick and vacation days. The federal statutes allow 12 weeks to recover from a serious illness that is also classified as a disability, such as alcoholism. When employees need additional time they usually can get an extension through a recertification from the medical doctor treating them. In that case, the employer does not have to give them paid leave but must keep an employee on the group health plan if the company has one while the worker is under treatment.
Last Chance Agreements
Employers may provide an ADA compliant “last chance agreement” to an employee who otherwise could be terminated immediately for substance abuse. The agreement needs to be very specific about what elements the employee has to meet to be reinstated. Usually the employer agrees not to terminate the worker if the employee receives substance abuse treatment, or refrains from alcohol or drug use, and to have no more workplace problems. A violation of the agreement usually results in immediate termination. Employers are not required to offer these agreements to every employee. Perhaps the employer will offer the agreement to someone who is especially valuable to the company or who has a very long tenure. The key to this agreement is to be able to articulate and document your reasons for offering the agreement, and to spell out a detailed list of requirements to be met. Be aware that there is almost non-existent case law in California concerning last chance agreements, but we would advise you to look at Grosvener v. Coastal Corp (51 Calapp4th 805). The Ninth circuit court in Fuller v. Frank (916 F2d. 558) upheld the validity of agreements against an employee’s claims of disability discrimination.
Drug Testing and Employee Privacy
Lastly, under California Labor code sec. 1026, as well as ADA confidentiality provisions, an employee is entitled to privacy concerning a medical condition. Other employees are not allowed to hear from the employer why someone is given accommodations concerning a job or absence while they are in a rehabilitation program. Managers should have training about how to respond to such questions because it is reasonable to assume that they will be asked by the employee’s co-workers. To avoid any misunderstanding with the employee’s co-workers, employers could reply that they don’t discuss an employee’s situation with others in order to protect the privacy of all employees. The employer could also legally assure co-workers that the employee is meeting all the company’s work requirements
As you can see, this is a complex area of employment law. When you are dealing with an employee suspected of alcohol abuse or illegal drug use – unless your HR department is expert in all the laws and regulations that might apply – you would be well-advised to strategize with employment counsel to avoid inadvertent complications and legal problems.Tags: Alcoholism, American with Disabilities Act, California Drug Free Workplace Act of 1990, California Fair Employment & Housing Act, California Family Leave Act, California Labor Code Sec. 1025, California Labor Code Sec. 1026, Equal Employment Opportunities Commission, Federal Family Leave Act, Fuller v. Frank, Grosvener v. Coastal Corp., Last Chance Agreements, Substance Abuse